Criminal Justice Systems
...(Kriminalpolizei) who initiate and develop investigations.’ The idea of ‘entrusting an impartial magistrate rather than to the police conducting essential portions of the investigation has been recommended for adoption in the USA.’ ‘There is argument that our police and the quality of investigations would benefit from some legal professional supervision.’ Although this view is not supported by Frederick Kadecka who suggests that; ‘judicial investigation fits into our modern criminal process about as well as a stagecoach into a garage’ or Bron Mckillop who said: ‘our judiciary are regarded as umpires and above the fray; it does not seem that judicial involvement in investigations would work here.’ The opposition to the implementation of judicial investigation can also be demonstrated in the French experience where ‘although the prosecutor has the power to direct or supervise investigations by judicial police he does not in fact exercise this power, leaving the investigation virtually entirely to the police.’ This example of the discretionary power illustrates a growing trend leading to a preference for police investigations as the preferred model. The French system raises the issue of a more extensive recording during the investigation through the use of dossiers that record the results are subject to scrutiny by judges and prosecutors which in turn provides them with an opportunity to make informed decisions prior to the commencement of the hearing. Whilst the benefits of this method of investigation have merit it would be unlikely that it could succeed within the Australian criminal system as the decision if often based on written material with no opportunity for oral cross examination. The investigation is a critical element to the criminal process in France as ‘the court can, and frequently does, rely on the dossier of the pre-trial investigation, especially if a witness’s oral testimony deviates from earlier statements.’ ‘The oral evidence is basically to confirm at a public hearing the contents of the dossier establishing guilt.’ ‘Justice is done on the basis of the dossier, but it is seen to be done at the public hearing.’ The importance of the investigative process is clearly evident in the German system in dealing with minor matters where ‘in the sixties it was estimated that from 66 to 70 percent of all criminal cases brought before the courts were disposed of by penal orders’ rendering the trial system almost redundant for the determination was arrived at on the strength of the investigative dossier. Jan Stepan illustrates ‘this is a simple and advantageous procedure’, as pleas can be entered without ‘the accused having to appear before the court.’ The case for investigation is further highlighted by Jan Stepan who suggests that ‘all over the European continent the investigation phase continued to be the most important, and in fact, remains today the usually decisive phase of the criminal process.’ However, this view must be taken in the context of the judicial system it is applied and a very different account can also be taken when examining the role of the trial especially in the more adversarial system as conducted in Australia where the trial becomes the more prominent feature of the criminal process. Trial Even though investigations do play an essential element in the justice process in Australia it merely serves as a preparation for the trial for ‘it produces the raw materials that may be converted into evidence.’ The trial is the avenue for determining guilt as it provides a public vehicle for evidence to be examined and scrutinised by all parties who have the opportunity to cross examine all witnesses under the provisions and guidance of the judicial system. Evidence is presented orally and the record of the investigation plays a minor role in the proceedings as the court relies upon the depositions created during the committal. Where discrepancies do occur the oral evidence at trial will dominate over that of the investigation as witnesses are under oath. The trial provides a unique and critical opportunity to closely examine the evidence and to question witnesses in any judicial process regardless of the application of the adversarial or inquisitorial principle. The role of the judge in the adversarial system is to coordinate; rule on points of law, make adjudications where the parties cannot agree and to make a determination based upon the unanimous findings of the jury. The cross examination and testing of the evidence is the responsibility of the representatives of the defence and prosecution who are highly trained and skilled. Their German colleagues, however, are ‘not trained in the ar...